Saintly Thoughts

Have you ever heard the term floater? And no, I am not degrading this blog's discourse (after my prolonged absence driven mostly by the fact that I did not realize I still owned this domain) to the level of scatological humor. A "floater" or "floating term" is a technical contract descriptor for a contractual clause which references some document external to the four corners of the agreement. A good example of this might be an online services agreement for the use of a website (Terms and Conditions, say) which then reference a "Privacy Policy" contained on some other website which is connected via hyperlink to the original document. If you ever come across such a contractual term, there is a good chance that the linked agreement might contain a clause allowing for it to be changed at any time at the will and whim of the drafting party. Hence the term "floater", in that such a provision makes a mockery of the concept of a determinate agreement. Thesetypes of clauses are extremely common (in fact, my use of the SquareSpace hosting service is likely governed by such an agreement). While it is unclear at this time whether courts will ultimately rule such provisions legal (there is little case law regarding such clauses) for now these un-tethered and unexpectedly fluid agreements govern much of our interactions in cyberspace.

As fascinating as the observation may be, I bring this to my readers attention not so much to make a point concerning the ridiculousness of modern contract law (though I could go on at length as to that topic) but rather to draw their attention to a principle of modern constitution law which is, I think, a disturbing aspect of the modern condition. You see, in a contract, the idea is that there is a meeting of the minds of two or more individuals who create an agreement driven by a relationship of shared ends or exchange. When a contract is not in place it is a natural human proclivity to assert their own will-to-power as against the interest of the other at each and every opportunity. The affectation of this will might be different in different circumstances, but at its heart will always devolve into some form of violence deriving from the will of only one party. In a contractual dispute (in theory) the party with the better argument wins regardless of who is the strongest. In a combat of wills, the strongest always wins. The ability to unilaterally change a term in a contract at will is a form of strength granting a great deal of power and it undercuts the very purpose of having a contract.

Yet, the form of the contract remains, and in this a form of power more subtle that the brute violence of arms is effectuated. For the weaker party, believing they are involved in a contest of law and not of power is lulled into a false sense of security, having been tricked into believing that there exists a rule of law where none exists. And here we come to the crux of the problem. For the contract represents two or more persons intent upon structuring an enforceable agreement, but is an ontologically sound representation of the aspirations of diverse humans, and is thus a "natural" thing. An agreement changeable at the will of the stronger party is not a real thing in the same way, because it is only based on the shifting relationships of power. This is the foundation of all modern political theory, that constitutions and laws are structured to effectuate the relations of shifting power dynamics. If they are well balanced, then they are good laws, because in this balance they reflect the underlying balance of human goods. Since modern political theory has eschewed a robust conceptualization of human goods (other than the individual will to power) then there is no measure of its goodness. Under such a spare regime, the role of raw power will grow and grow, eating everything in its path until there is nothing more for it to consum

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